MENKE v. BAKER (D.N.J. 8-1-2012)

This case is interesting because it provides an opportunity to discuss some of the “money dynamics” lurking behind typical qi cases. Courts assiduously avoid a candid discussion of these money dynamics. They are not relevant to the disposition of the case in a legal sense, and, so, courts are bound not to inquire. However, as regcits, we should understand these money dynamics and how they relate to out-of-control policemen in the streets.

Before moving to the money dynamics, I will point out that I will be speculating about certain things here in this post. I haven’t talked to the Plaintiffs (who were charged with Disorderly Conduct, as is so often the case in these qi cases). I Haven’t talked to the Plaintiffs’ criminal lawyer or their civil lawyer (who are different lawyers as is so often the case in qi cases). I haven’t talked to the Defendant Troopers (who are accused of false arrest and malicious prosecution). I haven’t talked to the Prosecutor or the Defendants’ civil lawyer(s).

To start the speculations, I think that, at the criminal court case, the Plaintiffs were being represented by a criminal defense lawyer who was probably paid very little for the representation. I doubt that the Plaintiffs’ criminal lawyer was thinking a whole lot, if at all, about the Plaintiffs’ civil claims, even though these civil claims probably had a higher “value” to his clients than the “value” of avoiding a trial on the criminal charges, such as the “criminal” charges were. After all, one Plaintiff had the charges dismissed and the other Plaintiff pled to a municipal nuisance violation. That is “small potatoes.” It is true that they were charged with Disorderly, which is a bigger deal, but it is still not necessarily a huge deal depending upon how the Plaintiffs are situated in life. The civil suit, on the other hand could be, or at least should have been, worth many, many thousands of dollars.

At this point, I’ll introduce the basic facts of the case, which occurred in a Wawa parking lot. A couple of plain clothes* policemen in an unmarked police vehicle started pestering the Plaintiffs for no good reason, and then arrested them when they failed to show proper respect to the policemen by backtalking and calling 911 on them. While it is true that it is generally prudential for regcits to respect police authority out “in the field,” and this even when police are behaving unlawfully, and it is also true that Plaintiffs violated this cardinal rule of thumb, still, what the policemen did in the Wawa parking lot was a lot worse.** It was harassment under color of law, which lead in a predictable way to them pulling a gun on Plaintiffs, taking them to jail and bringing criminal charges against them. To me, that is much worse than Disorderly. To me at least, what the plain clothes policemen did at the Wawa store is “big potatoes.”

So, returning to the criminal proceedings in the present set of cases, the criminal charges were minor and weakly factually grounded. The civil case was bigger and stronger. However, the Plaintiffs’ criminal lawyer apparently focused on the criminal proceedings and did not do what was needed to preserve the civil case. For one of the Plaintiffs, he allowed the one Plaintiff to plead to the municipal nuisance violation. For the other Plaintiff, he left an equivocal record as to whether the other Plaintiff thought his arrest was proper. Viewed in isolation, and focused only on the criminal part of the situation, this is probably considered to be decent results. Most likely, Plaintiffs’ criminal lawyer did just fine within the scope of his representation, within his time / money budget and within his presumed area of expertise. Unfortunately, his representation had a large and unfavorable impact on his client’s prospective civil claims. To put it in the vernacular, the Plaintiffs’ criminal lawyer wasn’t being paid to think about Plaintiffs’ civil claims. This is part of the money dynamics.

Another part of the money dynamics is that the criminal Prosecutor clearly was being paid to think about the civil claims. For one Plaintiff, the Prosecutor allowed a plea to a low level crime. For the other Plaintiff, the Prosecutor managed to get some remarks on the record to the effect that the other Plaintiff was having his charges dropped only because the other Plaintiff agreed his arrest in the Wawa parking lot was proper and Constitutional. Of course, the other Plaintiff didn’t really think that. I don’t think that many people reading the facts of this case (barring policemen, prosecutors and former prosecutors) would think that. It was a strategic fiction that the Prosecutor got into the record for the purpose of avoiding civil liability for “his” policemen. I am going to go out on a limb here and speculate that the Prosecutor is very well-compensated, in salary and benefits (like health insurance), to think about these big picture concerns and to craft wise legal strategies based on the big picture.

Now, on to the third and last part of the money dynamics. Enter the Plaintiffs’ civil lawyer. Working on contingency? Probably. If so, that means that his or her compensation is not certain, but it is potentially large. And, this is as it should be. After all, the Plaintiffs’ civil lawyer is going after a large and strongly factually grounded injustice (specifically the rotten behavior of the Defendant Troopers). Unfortunately for the Plaintiffs’ lawyer, the “big potatoes” civil case has been well-sabotaged by what happened at the “small potatoes” criminal case.

This “sabotage” is the result of a famous qi case called Heck v. Humphrey, 512 U.S. 477 (1994). Roughly speaking, this case says that prospective section 1983 plaintiffs can, in certain circumstances, have their claims barred by pleading to, or being found guilty, of criminal behavior — even very minor criminal behavior. In many situations, the law of Heck makes a lot of sense. If a prospective section 1983 plaintiff has been found guilty of rape or murder or kidnapping, or even if she merely pleads to these kinds of crimes, then society really doesn’t want her sitting in her prison cell filing suits to try to get money damages for her “false arrest.” After all, if the arrest was false, then the criminal’s defense lawyer would certainly have made that case at the murder / rape / kidnapping trial. If the plaintiff is sitting in prison on a murder / rape / kidnapping conviction then one can be pretty sure (beyond a reasonable doubt) that the policeman involved did follow the Constitution.

However, this kind of commonsense reasoning falls apart in a case like the present one. The Prosecutor was offering deals strategically designed to protect bad policemen from liability. I believe that, as a matter of ethics, the prosecutor should not be considering civil suits against the police at all when exercising her prosecutorial discretion in the form of offering plea and/or dismissal “deals.” But, in the present case, it is pretty clear that the Prosecutor did just that. Still, the chances that the Prosecutor will be disciplined for this apparent abuse of discretion are about zero.

As far as I can tell, and I will caution, again, that this post is speculative, money dynamics have perverted justice and protected bad behavior by bad policemen. Judge Rodriguez is clearly doing all he can*** to preserve the Plaintiffs’ civil claims, but his hands are largely tied by Heck doctrine. There is a problem with the law here, and I doubt it will be solved any time soon. Solving the problem would require an acknowledgement of the money dynamics at work and the contemporary judicial branch lacks the humility to deal with this sort of problem.

FOOTNOTES:

* Actually, one policeman was in a “uniform” designed not to look like a uniform, which is a modern low grade police abuse in and of itself. But that is the subject for another post. For present purposes, it is fair to say that both policemen in the Wawa parking lot were plain clothes.

** Normally, I would say that the police “allegedly” did bad, meaning that the Plaintiffs could be lying to try to get big civil damages — and that is always a possibility in section 1983 cases, human nature being what it is and all. However, in this case, based on the allegations, I choose to believe that the police did do bad. For example, it is not disputed one of the Plaintiffs called 911 to say that he didn’t know if the person pointing a gun at him was a policeman or not. That single fact, in and of itself, convinces me about who was basically in the right and in the wrong at the Wawa parking lot on the day in question.

*** Specifically, in the instant opinion the Judge Rodriguez is refusing to credit the Prosecutor’s representation at the criminal trial that the criminally-dismissed Plaintiffs agreed that the arrest was proper as a condition of having his Disorderly charge dropped. I am going to go out on a limb and say that I think many other judges would have decided this issue the opposite way. The legal realist in me says, “Good for Judge Rodriguez!” At least some of the civil case has been salvaged by his decision on this.